What Your Copier has Seen Cannot Be Unseen (Unless It's Wiped): Avoid HIPAA Exposure

by Bradley Arant Boult Cummings LLP
Contact

The next time you walk by your office copier or fax machine, plug a flash drive into a universal serial bus port on your computer, or pull your smartphone out of your pocket, consider the amount of data that has crossed through that device. More importantly, consider the type of data that has crossed through that device. This simple exercise could save you a lot of headaches and a lot of money.

This week, the U.S. Department of Health & Human Services' Office for Civil Rights announced a settlement with Affinity Health Plan Inc. (Affinity), a nonprofit managed care plan serving the New York metropolitan area, for alleged Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rule violations. The damage? $1,215,780 and a corrective action plan. The problem? Affinity failed to identify the potential security risks and vulnerabilities of electronic protected health information (PHI) stored in copier hard drives and failed to properly dispose of the electronic PHI before returning its leased copiers back to the leasing company. A subsequent purchaser of one of the copiers (which happened to be CBS Evening News) discovered PHI on the copier's hard drive. The PHI of up to 344,579 individuals was compromised by this simple oversight.

Such a simple oversight can be costly, however. Prior to February 18, 2009, a HIPAA violation could result in a civil monetary penalty of not more than $100 for each violation, up to $25,000 for identical violations in a calendar year. The Health Information Technology for Economic and Clinical Health Act (HITECH) dramatically increased penalties for HIPAA violations occurring on or after February 18, 2009. The penalty per violation now increases depending on the level of culpability involved and can range from $100 to $50,000 per violation. Failing to correct a violation in a timely manner, if the violation was due to willful neglect, would result in a minimum penalty of $50,000 per violation. Under HITECH, the cap for identical violations in a calendar year increased to $1.5 million.

In light of the increased penalties under HITECH and the ever-changing technological landscape, covered entities--and now business associates--must vigilantly assess the risks these newer technologies pose to the privacy and security of electronic PHI in their possession. Electronic equipment with any type of memory or storage media has the capacity to retain data passed through it long after the data is believed to be removed or deleted. Simply emptying your computer's recycle bin, for example, does not delete the files it contained from your computer. Instead, it frees the storage space containing those files so that they may be overwritten by new data. This space may not be immediately overwritten, so a technologically savvy individual could access that "deleted" information with relative ease. This is the case even on something as innocuous as the office copier, as Affinity can now attest.

To help protect against these hazards, covered entities and business associates, in compliance with the Security Rule, should undertake periodic risk assessments to ensure that any potential risks and vulnerabilities inherent in any existing or newly acquired technology are known and adequately addressed by the entity. Covered entities and business associates need to adopt policies and procedures that address those risks and vulnerabilities, including the disposal of electronic PHI and any hardware or media on which it is stored.

The Federal Trade Commission has published helpful guidance on copier data security. The National Institute of Standards and Technology (NIST) has published helpful guidelines for media sanitation (Guidelines). NIST's guidance is presently undergoing revision. Access a draft of its updated Guidelines.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bradley Arant Boult Cummings LLP | Attorney Advertising

Written by:

Bradley Arant Boult Cummings LLP
Contact
more
less

Bradley Arant Boult Cummings LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!